CEO 96-14 -- June 3, 1996

CONFLICT OF INTEREST

CITY PLANNER/GRANTS COORDINATOR SERVING AS

A MEMBER OF THE COUNTY COUNCIL

To: Glenn R. Sweeney, Grants Coordinator (City of Ormond Beach)

SUMMARY:

No prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were a city planner/grants coordinator whose duties, as an employee with the city manager=s office, include coordinating with the county on Community Development Block Grant projects and county council grants relative to the county port authority, to be elected to the county council. Because the city would not be regulated to any greater extent or degree than any other property owner within the city or county, the county=s possible future enactment of ordinances for the protection of the environment, which would be applicable within the city, would not constitute Aregulation@ for purposes of the application of the first part of Section 112.313(7)(a). Furthermore, intergovernmental agreements and dealings between governmental entities generally do not constitute Adoing business@ for purposes of Section 112.313(7)(a). Consequently, the first part of Section 112.313(7)(a) would not be applicable because the city planner/grants coordinator would not have employment with an Aagency@ which is either Adoing business@ with or is Aregulated@ by his agency.

In addition, under the circumstances, no continuing or frequently recurring conflict between the city employee=s private interests in pleasing his employer, the city, and the performance of his public duties, as a member of the county council, or an impediment to the full and faithful discharge of his public duties, as a member of the county council, would exist in violation of the second part of Section 112.313(7)(a) were he to remain employed by the city while serving as a member of the county council.

Finally, inasmuch as the city council is an Aagency@ exempted from the voting restrictions of Section 112.3143(3)(a), Florida Statutes, were the city planner/grants coordinator elected to the county council he would not be prohibited from voting on matters inuring to the special gain of the city.

QUESTION:

Would a prohibited conflict of interest be created were you, a Planner/Grants Coordinator with a City Manager's Office, where a "minor part" of your duties involve coordinating with the County on Community Development Block Grant projects and County Port Authority (County Council) grants, to be elected to the County Council?

Your question is answered in the negative.

In your letter of inquiry, you advise that you are currently an elected Commissioner of the West Volusia Hospital Authority and you are hoping to qualify for election to a seat on the Volusia County Council. However, you are employed as a planner/grants coordinator in the Ormond Beach City Manager=s office, in which position a minor part of your duties involves coordinating with the County on Community Development Block Grant projects and the Volusia County Port Authority with respect to County Council grants, you advise. Among the responsibilities listed in your written job description which you provided to us are the following:

C Developing alternative funding sources and reviewing literature dealing with funds available through grants from governmental agencies and private foundations to determine the feasibility of developing and/or expanding programs funded by the grants;

C Writing grant applications according to the format required and submitting applications to the funding agency or foundation; and

C Ensuring that periodic reports are written and submitted in order to remain in compliance with the grant requirements.

You write that your only direct dealings with the County occur through the administration of the Community Development Block Grant (CDBG) program and Volusia County Port Authority grants which, in all likelihood, you advise, will be completed prior to the commencement of the next County Council term. You also advise that under a Asubrecipient grant agreement@ between the City and the County, the County administers the CDBG program consistent with an AAnnual Plan of Expenditures@ which is adopted by the City Commission and approved by the U.S. Department of Housing and Urban Development (HUD). Periodically, amendments are made to the subrecipient agreements to change deadlines or dates or to revise budget items, you advise.

You advise further that the amount of grant funding received by the City each year is fixed by a formula based on respective poverty levels and population. The County has no discretion with respect to the lump sum amount of grant funding that it provides to the City. Moreover, while the County Council reviews the overall CDBG budget, it has not made adjustments in city budgets and lacks the authority to transfer money from one city to another in a manner inconsistent with the formula.

Finally, you advise that the County also presently leases from the City the building which houses a regional library and has entered into other interlocal agreements with City, you advise.

Because Volusia County is a home rule charter county, you suggest that there is existing and future potential for the City to be regulated in some fashion by the County. For example, you write that under the County Charter the County Council is required to establish by ordinance minimum standards, procedures, requirements and regulations for the protection of the environment. The Charter provides that

[s]uch standards, procedures, requirements and regulations shall apply within all the incorporated and unincorporated areas of Volusia County. In the event of a conflict between any standard, procedure requirement or regulation established by a County ordinance, the County ordinance shall prevail within the municipality to the extent of any conflict; provided, however, the governing body of each municipality may establish more restrictive standards, procedures, requirements or regulations within the municipality for the protection of the environment.

Therefore, prior to announcing your intent to run for the County Council, you would like to ensure that no prohibited conflict of interest would be created by your remaining an employee of the City while also serving as a member of the County Council.

Relevant to your inquiry are the following provisions of the Code of Ethics:

CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP.--No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he or she is an officer or employee . . . ; nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his or her private interests and the performance of his or her public duties or that would impede the full and faithful discharge of his or her public duties. [Section 112.313(7)(a), Florida Statutes.]

EMPLOYEES HOLDING OFFICE.--No employee of a state agency or of a county, municipality, special taxing district, or other political subdivision of the state shall hold office as a member of the governing board, council, commission, or authority, by whatever name known, which is his or her employer while at the same time, continuing as an employee of such employer. [Section 112.313(10)(a), Florida Statutes.]

Section 112.313(7)(a), Florida Statutes, prohibits a public officer from having or holding any employment or contractual relationship with a business entity or agency which is doing business with or is subject to the regulation of the employee's agency. Consequently, were you to be elected to the County Council, you would be a "public officer" pursuant to the definition of that term contained in Section 112.312(2), Florida Statutes (see CEO 92-39 and CEO 92-51) and would be prohibited from holding employment with the City of Ormond Beach were it subject to the regulation of or doing business with the County. On the other hand, we are of the opinion that the question of whether your service as a member of the County Council would conflict with your duties as a City Planner/Grants Coordinator does not come within the scope of Section 112.313(7)(a) because your serving as a member of the County Council would not constitute employment or a contractual relationship. See CEO 95-5.

Although you have suggested that in the future the City may be regulated in some fashion by the County as a result of its enacting ordinances establishing Aminimum standards, procedures, requirements, and regulations for the protection of the environment,@ we have advised that ordinances of general application which do not regulate one landowner more than another do not constitute Aregulation@ within the meaning of Section 112.313(7)(a). See CEO 89-47, CEO 88-20, and CEO 92-39. In CEO 92-39, where we addressed the question of whether a prohibited conflict of interest would be created were a city council member to remain employed by a school district as an assistant school superintendent, we referenced In re John Zerweck, Complaint No. 79-74, 2 FALR 1097A, and opined that while the city council was involved with the enactment or amendment of zoning or land-use ordinances affecting the district=s proposed high school site, this did not constitute Aregulation@ for purposes of the first part of Section 112.313(7)(a). We also observed that intergovernmental agreements and dealings between governmental entities generally have been found by us not to constitute Adoing business@ for purposes of the first part of section 112.313(7)(a), reasoning that the purpose of the Code of Ethics is to prevent private gain at public expense, not to prevent dealings between governmental entities. See also CEO 90-43.

Here, because it does not appear that the City would be regulated to a greater extent or degree than any other property owner within the City or County, we find that the County=s possible future enactment of ordinances for the protection of the environment does not constitute Aregulation@ for purposes of the first part of Section 112.313(7)(a), Florida Statutes. We also find that any intergovernmental agreements and dealings between the City and the County relative to the City=s administration of CDBG and Volusia County Port Authority grant funds and the County=s lease of the building for the Ormond Beach regional library do not constitute Adoing business@ for purposes of the first part of Section 112.313(7)(a). Therefore, we are of the opinion that the first part of Section 112.313(7)(a) would not prohibit you from retaining your employment with the City were you to be elected to the County Council.

The second clause of Section 112.313(7)(a) also prohibits a public officer from holding any employment that will create a continuing or frequently recurring conflict between his private interests and the performance of his public duties or an impediment to the full and faithful discharge of his public duties. The District Court of Appeal in Zerweck v. State Commission on Ethics, 409 So. 2d 57, 61 (Fla. 4th DCA 1982), stated that this prohibition establishes an objective standard which requires an examination of the nature and extent of the public officer=s duties together with a review of his private employment to determine whether the two are compatible, separate and distinct, or whether they coincide to create a situation which Atempts dishonor.@ Thus, as we did in Zerweck, in interpreting and applying Section 112.313(7)(a) here we must examine the nature of the public duties that you would have as a County Councilman along with your current obligations to the City, as an employee of the City, to determine if the two are compatible.

In CEO 85-56, we found that a prohibited conflict of interest would be created were a city employee to be appointed to serve on a water authority where the authority exercised substantial regulatory authority over the city. We opined that a likelihood existed that the employee=s personal and private interest in pleasing his full time employer occasionally would interfere with his obligation to impartially discharge the duties of the authority. See Section 112.311(1), Florida Statutes. In contrast here, you have indicated that (1) the amount of grant funding received by the City each year is fixed by a formula based on poverty levels and population; (2) under a subrecipient agreement between the City and the County, the County administers the CDBG program consistent with an annual plan adopted by the City Commission; (3) the County has no discretion with respect to the lump sum amount of grant funding that it provides to the City; and (4) the County lacks the authority to transfer money from one city to another in a manner inconsistent with the established formula. You also have indicated that your direct dealings, as an employee of the City, concerning the Port Authority grants in all likelihood will be completed before you would be assuming office. Finally, it does not appear that your employment is related in any way to the County=s lease of the library facility from the City.

Under the above circumstances, including the County Council=s limited role and authority relative to the grants that you administer and deal with, we conclude that, unlike the circumstances present in CEO 85-56, it is not likely that your personal and private interest in pleasing your full time employer, the City, would interfere with your obligation to impartially discharge the duties of the County Council. We find that no continuing or frequently recurring conflict between your private interests and the performance of your public duties as a member of the County Council, or an impediment to the full and faithful discharge of your public duties, would exist under the circumstances were you to remain employed by the City while serving as a member of the County Council.

However, we caution that if you are elected to the County Council, you should exercise caution in order to avoid running afoul of Section 112.313(6), Florida Statutes, which provides:

MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall corruptly use or attempt to use his or her official position or any property or resource which may be within his or her trust, or perform his or her official duties, to secure a special privilege, benefit, or exemption for himself, herself, or others. This section shall not be construed to conflict with s. 104.31. [Section 112.313(6), Florida Statutes.]

For purposes of this provision, the term "corruptly" is defined as follows:

'Corruptly' means done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his or her public duties. [Section 112.312(9), Florida Statutes.]

This provision prohibits you from using or attempting to use your official position to secure a special privilege or benefit for yourself or others where your actions are undertaken with a wrongful intent for the purpose of obtaining a special benefit resulting from actions which are inconsistent with the proper performance of your public duties. In other words, you should be careful to avoid using your position or giving the appearance of using your position, as a member of the County Council, to influence the decisions of County employees with respect to grant funds that the City either may be receiving or eligible for.

The Code of Ethics also provides:

VOTING CONFLICTS.--No county, municipal, or other local public officer shall vote in an official capacity upon any measure which inures to his or her special private gain or loss; which he or she knows would inure to the special private gain or loss of any principal by whom the officer is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained, other than an agency as defined in s. 112.312(3); or which he or she knows would inure to the special private gain or loss of a relative or business associate of the public officer. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of the officer=s interest in the matter from which he or she is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his or her interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes. [Section 112.3143(3)(a), Florida Statutes.]

Because the City is an Aagency@ exempted from the voting restrictions of this provision, you would not be prohibited from voting, as a member of the County Council, on matters inuring to the special gain of the City.

Finally, Section 112.313(10)(a), Florida Statutes, prohibits an employee from holding office as a member of the governing board which is his employer while concurrently continuing as an employee of such employer. For example, in CEO 76-83 we found that an employee of a school district would be prohibited from sitting on the board of that same school district. However, we concluded that because a district school board constitutes the governing body of a political subdivision separate and distinct from a board of county commissioners, Section 112.313(10)(a) would not be violated were an employee of a school district to be elected to the board of county commissioners. See also CEO 81-81, in which we stated that Section 112.313(10)(a) prohibits a municipal employee from also holding office as a member of the governing council of the municipality. Here, because you are employed by the City of Ormond Beach, which is independent from the Volusia County Council, we find that Section 112.313(10)(a) would not prohibit your continued employment with the City while serving as a member of the Volusia County Council.

Accordingly, under the circumstances presented, we find that no prohibited conflict of interest would be created were you, a City Planner/Grants Coordinator employed by the City of Ormond Beach, also to serve as a member of the Volusia County Council.

ORDERED by the State of Florida Commission on Ethics meeting in public session on May 30, 1996, and RENDERED this 3rd day of June, 1996.

___________________________________

William J. Rish

Chairman